RE ANYINEFA YAOVI JEAN

HCAL 3169/2019

[2022] HKCFI 2173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3169 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 2 June 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 22 February 2022 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 11 July 2019 (the “Leave Application”).

2.  Pursuant to the Court’s directions, he filed an affirmation on 2 June 2022 explaining the reasons for the delay and annexed a statement of the grounds of his intended appeal.   

The Law

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal;

(4)  prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  By 2 June 2022 when the Summons was filed, 100 days had lapsed since the date of the Order.  The application is 86 days out of time, which is very substantial in the context of a fourteen-day appeal period. 

5.  The reasons for the delay, according to his affirmation, is that he failed to notify his solicitors of his change of address.  The Applicant was legally aided at the time of the proceedings before DHCJ Li.  He moved to his new address without informing his solicitors.  Upon receipt of the judgment (the “Judgment”) and Order, his solicitors sent him the judgment and Order to his old address.  It was only until 22 April 2022 when he contacted his solicitors that he was informed of the Order.  He exhibited his tenancy agreement as evidence of his change of address.  I accept his explanation for the delay, but that explanation does not constitute a reasonable excuse as to relieve him of the legal consequence of the delay.  He only has himself to blame for not receiving the Order in time.

6.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report his change of address to the Court or to inform his solicitors.  If he did not, he has to bear the consequence of his neglect.  He does not have a reasonable explanation for not receiving the Order, though in fact he had not received it.

Prospect of the intended appeal

7.  The grounds of the Applicant’s intended appeal are as follows.   He is a Togolese national and ethnic Ewe suffering from HIV.  He stole money from his uncle in Togo to pay for his HIV treatment.  Convocations for his arrest in Togo are outstanding.  If imprisoned in Togo, he will not receive HIV treatment in prison and will die of AIDs.  Hence, there is a real risk of that event occurring.  He submitted that DHCJ Li fell into error on this issue. 

8.  This ground of appeal revolves around a very narrow compass. Assuming the Applicant is returned to Togo, prosecuted and convicted of theft, and despite his grounds of mitigation was sentenced to a term of imprisonment, the issue is whether there would be a real risk that he will not receive adequate treatment and whether that risk falls within the protection of BOR3 Risk[3] ground under the Unified Screening Mechanism.  This issue had been explored thoroughly by DHCJ Li in paragraphs 60 to 78 of his Judgment in relation to Grounds 4 and 5 of his intended application for judicial review.  For convenience, these passages are quoted hereunder:

“Ground 4

54. …

60. Counsel argued that if the applicant is convicted and imprisoned, his HIV condition would not be sufficiently supported. Counsel relied on the comment in a news webpage. [46] That page criticised the Togo government for inadequate treatment of HIV infected inmates. It is speculative to rely on that to infer the situation of the applicant if he is imprisoned or that the applicant would not receive any treatment. In my view, the fact that the applicant’s condition would be less favourably treated in Togo than in Hong Kong is not decisive in the context of Art. 3 of the Hong Kong Bill of Rights.[47]

61. In the circumstances, I do not think Ground 4 is reasonably arguable.

Ground 5

62. Counsel pointed out that the adjudicator ignored the possibility that the applicant had to obtain treatment by illicit means. The adjudicator ignored the poor conditions in Togo prisons which made treatment of HIV infected inmates even more deplorable. The adjudicator erred in relying on the COI which showed some improvements in prison conditions but ignored the substantial risk that the majority HIV infected inmates had no treatment at all.

63. Counsel pointed out that the legal provision prohibiting discrimination against HIV/AIDS patients would not deter discrimination in reality. It was wrong for the adjudicator to reject the fear that there would not be adequate treatment for the Ewes and others from the South.

64. In my view, the evidence supported the adjudicator’s view that there was medical treatment available in Togo. The applicant was able to obtain medication from JMAH. He purchased sufficient stock for 3 months before leaving Togo. There was no evidence to support counsel’s assertion that the applicant might have obtained the medication through illicit means.

65. The adjudicator also cited several COI which indicated that the government had taken positive steps to tackle the prevalence of AIDS in Togo.

a. The UN Committee noted positive measures to refund antiretroviral treatment for HIV positive patients. However, the Committee urged more funding on the protection against HIV/AIDS. Equal access of the antiretroviral treatment to the whole country and stable funding to prevent interruption of the treatment.[48]

b. The UNAIDS director commended the Togo government as access to antiretroviral treatment had doubled since 2008. The Prime Minister expressed commitment to more domestic spending on AIDS.[49]

c. Togo had reduced the new HIV infection by 50% and death rate dropped by 30% due to free treatment program since 2008.[50]

d. The adherence to ART program had increased from 20% to 49% in Togo at the regional hospital of Sodoké. This program was beneficial in reducing the risk of emergence of HIV resistant strains.[51]

66. Despite the progress in treatment of AIDS in Togo, the situation in prison was unclear. The adjudicator cited the following to support there was treatment though inadequate:

a. A commentary in iciLome.com dated 17/8/2015 citing the findings of the National Council for the Fight against AIDS that HIV inmates were not sufficiently supported. Out of 170 diagnosed with the virus only 18 were under treatment. This showed that prisoners in Togo received treatment though far from adequate. There was an increase rate of HIV infection in prisons. [52]

b. There was an article on the study of HIV prevalence in Togolese prisons. HIV care and treatment was uncertain in prison. Little effort had been made to prevent sexual transmission of HIV in Togolese prisons. [53]

c. The adjudicator cited USSD Report 2014 to demonstrate there was complaint channels (CNDH) to investigate human rights abuses and independent monitoring by international human rights organisations.[54] The applicant could complain if he was not given treatment if imprisoned. There was State protection against such risk.

67. In the hearing bundle, the only commentary which touched on the treatment of HIV/AIDS inmates is the iciLome.com cited in paragraph 66(a) above. It reported the survey of the National Committee for the Fight against AIDS that out of 170 diagnosed inmates only 18 were under treatment. Unfortunately, the original survey report was not available. The only conclusion that could be drawn is that HIV/AIDS treatment was far from adequate. It however contradicts the applicant’s assertion that there would not be any treatment.

68. The article entitled ‘HIV and incarceration: prisons and detention’ discussed the measures to minimise spreading of HIV/AIDS in prison. There is nothing about treatment of the HIV positive inmates in Togolese prisons.[55]

69. The expert report by Professor Benjamin N. Lawrance of the Rochester Institute of Technology touched on the treatment of HIV/AIDS in general. It found that only 33 % of those infected had access to ART or treatment of any kind. The report did not discuss the treatment of HIV/AIDS in prison.[56]

70. Although there is evidence that the Togo government has been adopting positive measures to improve the treatment of HIV/AIDS in Togo, this does not necessarily apply to the prisons in Togo. The only reasonable conclusion is that in Togo prisons, the treatment of HIV/AIDS is far from adequate.

71. In these circumstances, the principle set down in N v The United Kingdom is applicable. That case concerned the applicant (‘N’) who entered the UK in March 1998 from Uganda. She was HIV positive. In August 1998, she developed a second Aids-defining illness. In 2001, a medical expert opined that if her drug treatment was not maintained, her life expectancy would be less than a year. The medication would only be available in Uganda at considerable cost and in limited supply. The Immigration Tribunal allowed her application for protection because of her medical condition based on ill-treatment under Art. 3, ECHR[57]. The decision was overturned in the Immigration Appeals Tribunal and the Court of Appeal. The House of Lords rejected her appeal. ‘N’ petitioned to the European Court of Human Rights. The Court agreed with the House of Lords holding that removing the applicant to Uganda would not violate Art. 3 of the ECHR. The Court set down the following principles after reviewing past case-law.[58]

a. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State.

b. The fact that his life expectancy would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3.

c. The facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.

d. Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.

e. The same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.

72. As found by the adjudicator, the applicant was not involved in politics. Removal to Togo would not put him at risk of deliberate, political ill-treatment. His assertion that there would be lengthy pre-trial detention involves certain degree of speculation. The Togo government had taken positive measures in improving access of treatment in HIV/AIDS and improved prison conditions. The applicant is not critically ill at present. There is no compelling humanitarian ground against removal.

73. Counsel drew my attention to the expert report by Professor Benjamin N. Lawrance of the Rochester Institute of Technology. This report was attached to the FIT in the application for refugee status in 2011. This expert report was not referred to in the closing submission of the applicant’s lawyer before the TCAB. That might be the reason that the adjudicator had not refer to it. Be that as it may, I have the following observations about the report:

a. The Togo government had been targeting political activists who opposed the government. Torture, detention and extrajudicial killing occurred. However, given the findings that the applicant was not a political activist, the applicant would not be at personal risk because of this situation.

b. Professor Lawrence estimated that about 33% of HIV/AIDS patients received treatment of any kind. However, he did not mention JMAH which according to the applicant was a reliable source of treatment for his condition.

c. The report did not examine the situation in prison. However, it is accepted that treatment for HIV/AIDS should be far from adequate.

74. In my view, while the situation in Togo is far from satisfactory, given the findings of the adjudicator that the applicant was not involved in politics, Professor Lawrence’s report could not take the applicant’s case any further.

75. Counsel also referred me to the case of Salakhov and Islyamova v Ukraine.[59] Counsel argued that this case modified the principle in N v The UK. It established that a country had a duty to provide prompt medical care for its detainees.

76. In Salakhov, the applicant was detained pending trial for an offence of robbery in November 2007. He was tested HIV positive earlier in February 2006 but he had not informed the detention authorities. His condition deteriorated gradually during detention. In June 2008, he was examined by the Chief Doctor of the Central Hospital several times. The doctor found that he did not need urgent hospitalisation. The applicant was fined by the court in July 2008 for fraud instead of robbery. He was released and died on 2/8/2008 of AIDS related conditions. Expert report[60] concluded that the Chief Doctor of the Central Hospital failed to provide prompt medical assistance. The Strasbourg Court found that the doctor of the Central Hospital failed to provide timely and adequate medical assistance. Given that the Central Hospital was a public institution, the State was responsible.[61] This conduct violated Art. 3 of the ECHR.

77. Salakhov established that the State must provide prompt medical assistance to its detainees. The case did not turn on the removal of an alien with serious medical condition from the Contract State. It did not modify the principles set down in N v The United Kingdom.

78. Having considered the above, I do not think this ground is reasonably arguable.

[46] Icilome.com at page 174 of Bundle 1.

[47] Bensaid v The UK, Judgment dated 6/2/2001, §§38—40.

[48] Initial report of Togo, UN Committee on Economic, Social and Cultural Rights, 3/6/2013, section B, 6(c) and paragraph 31. See Bundle 4, pages 813 and 819

[49] Bundle 4, page 822.

[50] Xinhuanet.com dated 31/7/2015, Bundle 4, page 823.

[51] The adherence to Antiretroviral Treatment, bundle 4, pages 825—834.

[52] A workshop for various stake holders in charge of prison, Bundle 1, page 174.

[53] HIV seroprevalence among inmates in Togo, Bundle 1, pages 164—171, at 169.

[54] USSD report 2014, the National Commission for Human Rights, section 5 and section 1. Bundle 4, pages 788-789, 796.

[55] Journal of The International Aids Society, Vol. 14, 2011. Bundle 5, page 1089—1097.

[56] Bundle 3, pages 515—531. Report made on 13/7/2011

[57] European Convention of Human Rights. Art. 3 is the substantially the same as Art. 3 of the Hong Kong Bill of Rights.

[58] N v The United Kingdom, Grand Chamber, Application no. 26565/05, Judgment on 27/5/2008, §§42-45.

[59] Application no. 28005/08, Judgment dated 14/3/2013.

[60] From the Crimea Republic Bureau for Forensic Medical Examinations.

[61] See note 59, §§142—147.”

9.  In essence, relying on a comment on a webpage news the Applicant argued under Ground 4 that if imprisoned in Togo, his HIV condition will not be sufficiently supported.  DHCJ Li dismissed that argument as speculative.  DHCJ Li further held that the fact that the Applicant’s condition would be less favourably treated in Togo than in Hong Kong is not decisive in the context of Article 3 of the Hong Kong Bill of Right, ie his claim under BOR 3 Risk ground.

10.  Under Ground 5, DHCJ discussed the Applicant’s arguments about the Board’s finding about the conditions in Togo prison, discrimination against HIV/AIDS patients, availability of medical treatment in Togo, etc.  The Board referred to authoritative, credible and objective country of origin information. In paragraph 70, DHCJ Li concluded that although there is evidence that the Togo government has been adopting positive measures to improve the treatment of HIV/AIDS in Togo, the treatment of HIV/AIDS is far from adequate in Togo prisons.  This is a finding of fact which supported the Applicant’s argument that his life would be at risk if refouled. 

11.  This argument had been thoroughly considered but rejected by DHCJ Li on the principle set down in N v The United Kingdom.  In that case, the European Court of Human Rights agreed with the House of Lords of the United Kingdom that refouling an applicant to his home state would not violate Article 3 of the European Convention of Human Rights which is substantially the same as Article 3 of the Hong Kong Bill of Rights: see paragraph 71 of the Judgment.  This principle developed by the highest international court in human rights and the highest court in the United Kingdom is beyond challenge.

12.  Thus, even accepting that the Applicant will be put in prison upon his return where he would not receive as good treatment in AIDS as he would in Hong Kong and his life expectancy would be substantially reduced, his refoulement would not be in violation of BOR 3 Risk ground as to entitle him to non-refoulement protection.  His intended appeal has no prospect of success.

Prejudice to the respondent

13.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.  The Applicant has no reasonable explanation for the very substantial delay.  His intended appeal has no prospect of success.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  Accordingly, the application for extension of time to appeal is refused.